1. The author of the communication is P. L., an
Irish national, who also purports to submit the communication on behalf of
his three sons, R. J. L., D. M. L. and T. P. L., who have dual nationality
(Irish and German) and were born on 23 May 1984 (R. J. L.), 24 November 1986
(D. M. L.) and on 27 June 1990 (T. P. L.). The author claims that he and his
sons are victims of violations by Germany [FN1] of articles 14, paragraph 1,
and 23, paragraph 4, and his sons of a violation of article 24, paragraph 1,
of the International Covenant on Civil and Political Rights ("the
Covenant"). The author is not represented by counsel.

-------------------------------------------------------------------------------------------------------------------------------
[FN1] The International Covenant on Civil and Political Rights and the
Optional Protocol entered into force for the State party respectively on 23
March 1976 and 25 November 1993.
-------------------------------------------------------------------------------------------------------------------------------

1.2 On 7 February 2002, the Committee, acting through its Special Rapporteur
on new communications, decided to separate its consideration of the
admissibility and the merits of the communication.

THE FACTS AS SUBMITTED BY THE AUTHOR

2.1 On 20 November 1994, the author's wife left the family home together
with her and the author's three sons. The District Court of Ratingen (Amtsgericht
Ratingen), by interim injunction of 25 November 1994, granted her the sole
right to determine the domicile of the children and, by decision of 19 March
1996, preliminary sole custody of the children during the time of separation
of the spouses. On or about 21 June 1996, the Higher Regional Court of
Düsseldorf (Oberlandesgericht Düsseldorf) rejected the author's appeal
against the decision of 19 March 1996. His constitutional complaint against
the decisions of the lower courts was dismissed by the Federal
Constitutional Court (Bundesverfassungsgericht) on 2 April 1997. On 28 April
1997, the author submitted an application to the European Commission of
Human Rights, which was declared inadmissible on 19 January 1998.

2.2 By judgment of 27 October 1998, the District Court of Ratingen
pronounced the divorce of the spouses. Custody was granted to the mother,
since the Court considered her better placed to ensure the welfare of the
children. It based its findings on a hearing of the three sons, each of whom
had expressed his preference to stay with the mother. The Court rejected the
author's argument that the mother had manipulated the children prior to the
hearing, finding that their bonds with the mother were stronger than those
with the author, which was considered understandable, given that the
children had stayed with the mother throughout the time of separation. The
decision to grant sole custody to the mother would also enable the children
to retain continuity in schooling and to remain in familiar surroundings. As
to visiting rights, the Court granted the author visiting rights twice a
month on weekends and for several weeks during the holiday period.

2.3 In his appeal dated 18 December 1998, the author requested the
Düsseldorf Higher Regional Court to quash the judgment of the District Court
and grant custody to him. He argued that the mother neglected the children,
that she was frequently absent, rarely cooked for them, failed to ensure
their health care and neglected their bodily hygiene. Allegedly, the
children even showed signs of physical abuse. The author reiterated that the
mother exercised pressure on the children and manipulated their statements
before the courts. In the alternative, if custody was not to be granted to
him, the author requested extended visiting rights.

2.4 By decision of 1 March 1999, the Higher Regional Court dismissed the
author's appeal without scheduling another hearing of the children. It
considered that he was not better placed to ensure the children's welfare
than the mother. Unlike the mother, the author had previously failed to
cooperate with the Child Welfare Office of Ratingen. Moreover, allocation of
sole custody to the mother was required to ensure continuity for the
children and was consistent with their express wish to stay with the mother.
The District Court's ruling on visiting rights was upheld, in the interest
of not further destabilizing the children.

2.5 On 4 April 1999, the author faxed a constitutional complaint to the
Federal Constitutional Court, without however enclosing copies of the
impugned decisions of the lower courts. At the top of the fax cover, it was
stated: "Advance fax […] (without enclosures)". By letter of 7 April 1999,
the Federal Constitutional Court informed the author that so as to comply
with the one-month deadline for lodging a constitutional complaint, a
complainant must not only submit but also substantiate the complaint within
the one-month period after the final decision of the lower court. This
required submission of all relevant documents, in particular court
decisions, before the end of that period, even in cases where a complaint
was submitted on a preliminary basis for purposes of complying with the
deadline. The author was advised that his complaint did not meet these
requirements, since the judgments of 1 March 1999 and of 27 October 1998 had
not been enclosed with the fax of 4 April 1999. It was therefore impossible
for the Court to examine whether these decisions violated the author's
constitutionally guaranteed right to protection by the courts. Insofar as
the author had submitted the constitutional complaint on behalf of his sons,
the letter raised doubts as to whether he was authorized to represent them
as a non-custodial parent. It concluded that it was too late for
supplementing the complaint, since the one-month period following the
service (5 March 1999) of the decision of the Düsseldorf Higher Regional
Court had expired on 6 April 1999.[FN2]

-------------------------------------------------------------------------------------------------------------------------------
[FN2] Undisputedly, 5 April 1999 was a public holiday in Germany.
-------------------------------------------------------------------------------------------------------------------------------

2.6 On 9 April 1999, the author's complaint, dated 4 April 1999 but carrying
the postmark of 6 April 1999, was delivered to the Federal Constitutional
Court by post, this time including copies of the relevant court decisions.
By letter of 14 April 1999, the author was again advised that the one-month
period for lodging a constitutional complaint had expired on 6 April 1999
and that he had failed to substantiate his complaint prior to that date.

2.7 On 16 March 2000, the author applied to the District Court of Ratingen
for transfer of the custody of the children to him. He asked the Court to
issue an interim order to that effect, and argued that the mother
continually failed to take proper care of the children, which was reflected
in their poor school performance as well as their deplorable state of
health. The author requested the Court to appoint a legal guardian (Verfahrensbetreuer)
to represent the interests of his children during the legal proceedings and
to schedule another hearing of the children, who allegedly had stated their
preference to live with him.

2.8 On 14 June 2000, the author challenged the competent judge on grounds of
alleged bias, alleging that she had described his arguments in favour of
another hearing of the children as "pure fantasies", attributable to his
living in "an unreal world". His motion to have her replaced by another
judge was declared ill-founded by the Higher Regional Court of Düsseldorf on
12 July 2000, on the basis that, in family law matters, judges were entitled
to express their opinion to the parties, as long as they remained open to
new and better arguments and arrangements.

2.9 By decision of 28 September 2000, the District Court of Ratingen
rejected the author's motion to transfer custody to him, considering that
the ongoing tensions between the ex-spouses were the main cause for the
problems the children faced in school. The author himself, by his refusal to
cooperate with the youth authorities, as well as his constant criticism of
the mother, had himself exacerbated these tensions. Since the children had
reiterated their wish to stay with the mother during a second hearing
conducted by the Court, it found no reason to review its previous decision
to grant sole custody to the mother. The author's immediate appeal against
that decision was dismissed by the Higher Regional Court of Düsseldorf on 7
December 2000. No constitutional complaint was lodged in relation to these
or any subsequent proceedings.

2.10 On 24 May 2001, the author, seeking extra-judicial relief in his
matter, submitted a petition to the Petitions Committee of the German
Federal Parliament and, on 8 September 2001, to the Minister of Youth,
Family, Women and Health of the State of Northrhine-Westphalia, each time
without success.

THE COMPLAINT

3.1 With regard to his claim under article 14, paragraph 1, the author
submits that the courts frequently denied his requests for the children to
be heard and ignored evidence presented by him concerning the mother's
neglect, if not abuse, of the children. The excessive length of the
proceedings had led to the further deterioration of their physical and
psychological state. Moreover, the application of the principle of free
jurisdiction (Freie Gerichtsbarkeit) permitted the family courts not to
apply the procedural rules which would bind all other jurisdictions, thus
leaving the judges wide discretion in evaluating evidence and in defining
the child's "best interest".

3.2 The author submits that the award of sole custody to his ex-wife
disenfranchised him to such an extent that he was not even allowed to speak
to the children's doctors or teachers. In the absence of a distinction
between custody and legal guardianship under German family law, he was
unable to participate in any important decision regarding his sons. Thus,
his wife was able to have her sons naturalized in Germany without even
informing him. The author considers that this situation is in breach of his
right to equality of spouses under article 23, paragraph 4, of the Covenant.

3.3 The author alleges that the failure of the German courts and authorities
to put an end to the mother's neglect of the children, ranging from failure
to take care of their health and education to instances of abuse,
constitutes a denial of their right to the necessary protection by the
State, in violation of articles 23, paragraph 4, and 24, paragraph 1, of the
Covenant.

3.4 The author claims that he and his sons have exhausted all domestic
remedies, since the Higher Regional Court of Düsseldorf, as the highest
responsible court, rejected both his appeals on 1 March 1999 and 7 December
2000, respectively. He argues that a constitutional complaint to the Federal
Constitutional Court is not an effective remedy in family law matters,
because this Court regularly dismisses complaints against custody decisions
of lower courts, as it is not competent to adjudicate on family law issues
as such.

3.5 The author observes that the same matter is not being and has not been
examined under another procedure of international investigation or
settlement, since his application to the European Commission on Human
Rights, which had been declared inadmissible on 19 January 1998, dealt with
the decision of the German courts to grant his ex-wife preliminary sole
custody of the children for the duration of the separation, and therefore
with proceedings which were entirely different from the final award of
custody and the rejection of his request to transfer custody to him, which
constituted the subject matter of his communication to the Human Rights
Committee.

THE STATE PARTY'S SUBMISSION ON THE ADMISSIBILITY OF THE COMMUNICATION

4.1 By note verbale of 4 October 2001, [FN3] the State party submitted its
observations on the admissibility of the communication. It challenges
admissibility on the basis that the author has not exhausted all available
domestic remedies.

-------------------------------------------------------------------------------------------------------------------------------
[FN3] After numerous additional submissions had been received from the
author, the communication was transmitted to the State party on 7 August
2001, under rule 91 of the Committee's Rules of Procedure.
-------------------------------------------------------------------------------------------------------------------------------

4.2 The State party argues that the author failed to lodge a constitutional
complaint with the Federal Constitutional Court against the decisions of the
Düsseldorf Higher Regional Court of 1 March 1999 within the one-month period
following the impugned decision, as required by section 93 (1) [FN4] of the
Law on the Federal Constitutional Court (Bundesverfassungsgerichtsgesetz).
It was not sufficient that the author posted his complaint on 6 April 1999 -
the last day of the one-month period -, since a complaint must reach the
Court by the end of the legal period; the author's complaint reached the
Court only on 9 April 1999 and was therefore not registered.

-------------------------------------------------------------------------------------------------------------------------------
[FN4] Section 93 (1) of the Law on the Federal Constitutional Court
provides, in pertinent part, that "[t]he constitutional complaint must be
lodged and substantiated within one month".
-------------------------------------------------------------------------------------------------------------------------------

4.3 In order to meet the deadline the author was not dependent on the postal
service, since he was in possession of a fax machine. Therefore, he could
simply have faxed his complaint on 5 or 6 April 1999 to the Federal
Constitutional Court.

4.4 Moreover, the registrar of the Court, in his letter of 14 April 1999,
informed the author that if he wished a judge to decide on the question of
admissibility of the complaint, he should so inform the Court. However, the
author preferred not to take up this opportunity.

4.5 Lastly, the State party submits that, contrary to the author's view, a
constitutional complaint would not have been a priori a futile remedy.

COMMENTS BY THE AUTHOR

5. By letter of 28 November 2001, the author responded to the State party's
observations on admissibility and, by letter of 18 February 2002, furnished
additional information. He argues that the State party seeks to absolve
itself of its responsibilities by means of a pure technicality (his failure
to enclose the relevant court decisions with the complaint faxed on 4 April
1999), despite his repeated efforts to exhaust all remedies available under
German law. Apart from his constitutional complaint of 4 April 1999, which
reached the Federal Constitutional Court the same day by fax, he had lodged
two similar complaints, which were dismissed by the Constitutional Court on
2 April 1997 (see para. 2.1) and on 29 December 1997.

ISSUES AND PROCEEDINGS BEFORE THE COMMITTEE

6.1 Before considering any claims contained in a communication, the Human
Rights Committee must, in accordance with article 87 of its rules of
procedure, decide whether or not it is admissible under the Optional
Protocol to the Covenant.

6.2 The Committee has ascertained that, insofar as the impugned decisions
[FN5] are concerned, the same matter is not being examined under another
procedure of international investigation or settlement for purposes of
article 5, paragraph 2 (a), of the Optional Protocol. It recalls, in this
context, that the author's application to the European Commission of Human
Rights dealt with issues other than those before the Committee, namely the
judgments of 19 March 1996 and of 21 June 1996, awarding temporary custody
to the mother for the duration of the separation (see para. 2.1).

-------------------------------------------------------------------------------------------------------------------------------
[FN5] The communication only relates to the decisions of the Ratingen
District Court of 27 October 1997 and of 28 October 2000, as well as the
decisions of the Düsseldorf Higher Regional Court of 1 March 1999 and of 7
December 2000. See para. 3.6.
-------------------------------------------------------------------------------------------------------------------------------

6.3 The Committee has noted the parties' arguments relating to the question
of exhaustion of domestic remedies. In particular, it notes the State
party's observation that, in order for a complainant to comply with the
one-month deadline following service of the final decision of the lower
courts, a constitutional complaint must reach the Federal Constitutional
Court before the end of that period, and that all relevant documents, in
particular the impugned court decisions, must accompany the complaint in
substantiation thereof in order to enable an examination by the
Constitutional Court as to whether the complainant's constitutional rights
have been violated. It has noted the author's argument that he made repeated
efforts to exhaust domestic remedies, by lodging three constitutional
complaints relating to the same subject matter, despite the alleged
ineffectiveness of this remedy in family law matters.

6.4 The issue before the Committee is whether, for purposes of exhausting
all available domestic remedies, in accordance with article 5, paragraph 2
(b), of the Optional Protocol, the author was required to lodge a
constitutional complaint against the decisions of the Ratingen District
Court of 27 October 1997 and of 28 October 2000, as well as the decisions of
the Düsseldorf Higher Regional Court of 1 March 1999 and of 7 December 2000,
and, if so, whether he pursued this remedy in accordance with the procedural
requirements prescribed by law.

6.5 The Committee observes that, in addition to ordinary judicial and
administrative appeals, authors must also avail themselves of all other
judicial remedies, including constitutional complaints, in order to fulfill
the requirement of exhaustion of all available domestic remedies, insofar as
such remedies appear to be effective in the given case and are de facto
available to the author. [FN6] The Committee notes that the author's
constitutional complaints of 29 July 1996 and of 15 July 1997, which were
dismissed by the Constitutional Court on 2 April 1997 and 29 December 1997,
respectively, related to legal proceedings different from the final award of
custody to his ex-wife, which was the subject matter of the complaint faxed
to the Constitutional Court on 4 April 1999. The dismissal of these
constitutional complaints was therefore without prejudice to the prospect of
success of the latter complaint. Moreover, the Committee notes that the
author has failed to substantiate his contention that a constitutional
complaint is generally ineffective in family law matters. The Committee
concludes that, to exhaust all available domestic remedies, the author
should have availed himself of the opportunity of lodging a constitutional
complaint against the decisions of the German courts granting final custody
to his ex-wife and rejecting subsequent applications for transfer of
custody. Such a complaint could not ipso facto be considered an ineffective
remedy, in the specific circumstances of the case.

6.6 As to whether the author pursued this remedy in accordance with the
procedural requirements prescribed by law, the Committee notes that he
failed to furnish copies of the decisions of the Ratingen District Court of
27 October 1998 and of the Düsseldorf Higher Regional Court of 1 March 1999
(award of post-divorce custody to the mother), when he faxed his complaint
to the Federal Constitutional Court on 4 April 1999. These documents reached
the Court only on 9 April 1999, after the expiry of the legal one-month
deadline on 6 April 1999. That the author was not, at that point,
represented by counsel and that he was possibly unaware of this requirement
cannot justify his failure to comply with the procedural prerequisites of
section 93 (1) of the Law on the Federal Constitutional Court. [FN7]

6.7 Insofar as the author claims that the rejection of his application for
transfer of custody, on 28 September 2000, by the Ratingen District Court
and, on 7 December 2000, by the Düsseldorf Higher Regional Court violated
his and his sons' rights under articles 14, paragraph 1, 23, paragraph 4,
and 24, paragraph 1, of the Covenant, the Committee notes that the author
did not lodge a constitutional complaint against these decisions.

6.8 In the light of the foregoing, the Committee concludes that the author
failed to exhaust all available domestic remedies.

7. The Committee therefore decides:

(a) That the communication is inadmissible under article 5, paragraph 2 (b),
of the Optional Protocol;
(b) That this decision shall be communicated to the author, and, for
information, to the State party.

__________________________

[Adopted in English, French and Spanish, the English text being the original
version. Subsequently to be issued also in Arabic, Chinese and Russian as
part of the Committee's annual report to the General Assembly.]